EXHIBIT 10.36
$74,800,000
PURCHASE AGREEMENT
BETWEEN
BNP LEASING CORPORATION,
("BNPLC")
AND
3COM CORPORATION,
("3COM")
EFFECTIVE AS OF OCTOBER 4, 1996
(Great America Site - Phase I)
This Agreement is being facilitated by the
following banks:
Banque Nationale
de Paris
ABN AMRO Bank N.V.
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "Agreement") is made as of
October 4, 1996, by 3COM CORPORATION, a California corporation
("3COM") and BNP LEASING CORPORATION, a Delaware corporation
("BNPLC").
R E C I T A L S
A. BNPLC is acquiring the land described in Exhibit A
attached hereto and the improvements and certain fixtures
located thereon and is leasing the same to 3COM pursuant to
that certain Lease Agreement (as from time to time
supplemented, amended or restated, the "Lease") between 3COM
and BNPLC dated as of the date hereof. (The land described in
Exhibit A and any and all other real or personal property from
time to time covered by the Lease and included within the
"Leased Property" as defined therein are hereinafter
collectively referred to as the "Property".)
B. BNPLC is also concurrently herewith receiving a
separate environmental indemnity from 3COM pursuant to an
Environmental Indemnity Agreement (as from time to time
supplemented, amended or restated, the "Environmental
Indemnity") between 3COM and BNPLC dated as of the date
hereof.
C. 3COM has requested an option to purchase the
Property, which BNPLC is willing to provide on and subject to
the terms and conditions set out herein.
NOW, THEREFORE, in consideration of the above recitals
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Definitions. As used herein, the terms "3COM",
"BNPLC", "Property", "Lease" and "Environmental Indemnity"
shall have the meanings indicated above; terms with initial
capitals defined in the Lease and used but not defined herein
shall have the meanings assigned to them in the Lease; and the
terms listed immediately below shall have the following
meanings:
"Applicable Purchaser" means any third party designated
by 3COM to purchase the interest of BNPLC in the Property as
provided in Paragraph 2(a)(ii) below.
"Deposit Taker" shall have the meaning assigned to it in
the Pledge Agreement.
"Deposit Taker Losses" shall have the meaning assigned to
it in the Pledge Agreement.
"Designated Sale Date" means the earlier of:
(1) the effective date of any termination of
the Lease by 3COM pursuant to Paragraph 2 thereof;
(2) any date designated by BNPLC in a written
notice given by BNPLC to 3COM when an Event of Default by
3COM is continuing, provided the notice of the date so
designated is given by BNPLC at least thirty (30) days
before the date so designated; or
(3) the first Business Day in November, 2001.
"Direct Payments to Participants" means the amounts paid
or required to be paid directly to Participants on the
Designated Sale Date as provided in Section 6.2 of the Pledge
Agreement at the direction of and for 3COM by the collateral
agent appointed pursuant to the Pledge Agreement from all or
any part of the Collateral described therein.
"Fair Market Value" means the fair market value of the
Property on or about the Designated Sale Date (calculated
under the assumptions, whether or not then accurate, that 3COM
has maintained the Property in compliance with all Applicable
Laws [including Environmental Laws]; that 3COM has completed
the construction of any Improvements which was commenced prior
to the Designated Sale Date; that all such Improvements are
self-sufficient in the sense that any easements or offsite
facilities needed for their use will be available at no
additional cost to the owner of the Improvements; that 3COM
has repaired and restored the Property after any damage
following fire or other casualty; that 3COM has restored the
remainder of the Property after any partial taking by eminent
domain; that 3COM has completed any contests of and paid any
taxes due [other than Excluded Taxes] or other amounts secured
by or allegedly secured by a lien against the Property other
than Prohibited Encumbrances; that no conditions or
circumstances on or about the Property [such as the presence
of an endangered species] is discovered that will impede the
use or any development of the Property permitted by the Lease;
that any use or development of the Property as permitted by
the Lease will not be hindered or delayed because of the
limited availability of utilities or water; that without undue
cost or delay any purchaser paying fair market value for the
Property can obtain any necessary permits or licenses needed
to use the Property for the purposes permitted by the Lease;
and that 3COM has cured any title defects affecting the
Property other than Prohibited Encumbrances, all in accordance
with the standards and requirements of the Lease as though the
Lease were continuing in force) as determined by an
independent MAI appraiser selected by BNPLC, which appraiser
must have five (5) years or more experience appraising similar
properties in northern California.
"Qualified Deposit Taker" means one of the fifty largest
(measured by total assets) U.S. banks, or one of the one
hundred largest (measured by total assets) banks in the world,
with debt ratings of at least (i) A- (in the case of long term
debt) and A-1 (in the case of short term debt) or the
equivalent thereof by Standard and Poor's Corporation, and
(ii) A (in the case of long term debt) and P-1 (in the case of
short term debt) or the equivalent thereof by Xxxxx'x Investor
Service, Inc. The parties believe it improbable that the
ratings systems used by Standard and Poor's Corporation and by
Xxxxx'x Investor Service, Inc. will be discontinued or
changed, but if such ratings systems are discontinued or
changed, 3COM shall be entitled to select and use a comparable
ratings systems as a substitute for the S&P Rating or the
Xxxxx Rating, as the case may be, for purposes of determining
the status of any bank as a Qualified Deposit Taker.
"Purchase Price" means an amount equal to Stipulated Loss
Value outstanding on the Designated Sale Date, plus all costs
and expenses (including appraisal costs, withholding taxes (if
any) and reasonable Attorneys' Fees, as defined in the Lease)
incurred in connection with any sale of the Property by BNPLC
hereunder or in connection with collecting sales proceeds due
hereunder, less the aggregate amounts (if any) of Direct
Payments to Participants and Deposit Taker Losses.
"Prohibited Encumbrance" means any lien or other title
defect encumbering the Property that is claimed by BNPLC
itself or lawfully claimed by a third party through or under
BNPLC, including any judgment lien lawfully filed against
BNPLC and including any tax lien assessed because of BNPLC's
failure to pay Excluded Taxes, but excluding the Lease and any
lien or other title defect that (i) is a Permitted Encumbrance
(as defined in the Lease), regardless of whether claimed by,
through or under BNPLC, (ii) is claimed by, through or under
3COM or any of the Participants approved by 3COM (other than
Landlord's Parent), or (iii) exists because of any breach by
3COM of the Lease, because of anything done or not done by
BNPLC in an effort to satisfy subparagraph 9(b) of the Lease,
or because of anything done or not done by BNPLC at the
request of 3COM.
"Remarketing Notice" shall have the meaning assigned to
it in Paragraph 2(b)(1) below.
"Required Documents" means the grant deed and other
documents that BNPLC must tender pursuant to Paragraph 3
below.
"Shortage Amount" means any amount payable to BNPLC by
3COM, rather than by the Applicable Purchaser, pursuant to
clause 2(a)(ii) below.
2. 3COM's Options and Obligations on the Designated
Sale Date.
(a) Choices. On the Designated Sale Date 3COM shall
have the right and the obligation to either:
(i) purchase BNPLC's interest in the Property
and in Escrowed Proceeds, if any, for a net cash
price equal to the Purchase Price; or
(ii) cause the Applicable Purchaser to purchase
BNPLC's interest in the Property and in Escrowed
Proceeds, if any, for a net cash price not less than
the lesser of (a) the Fair Market Value of the
Property, (b) fifteen percent (15%) of Stipulated
Loss Value outstanding immediately prior to the
purchase or (c) the Purchase Price. If, however,
the Fair Market Value is less than fifteen percent
(15%) of Stipulated Loss Value and less than the
Purchase Price, BNPLC may elect to keep the Property
and any Escrowed Proceeds rather than sell to the
Applicable Purchaser, in which case 3COM shall pay
BNPLC an amount equal to (A) eighty-five percent
(85%) of Stipulated Loss Value, less (B) the sum of
(x) any Escrowed Proceeds then held and to be
retained by BNPLC, (y) any Direct Payments to
Participants and (z) any Deposit Taker Losses.
Unless BNPLC elects to keep the Property pursuant to
the preceding sentence, 3COM must make a
supplemental payment to BNPLC on the Designated Sale
Date equal to the excess (if any) of the Purchase
Price over the net cash price actually paid to BNPLC
on the Designated Sale Date by the Applicable
Purchaser for BNPLC's interest in the Property and
in Escrowed Proceeds, if any. However, provided no
Event of Default has occurred and is continuing
under the Lease, and provided further that neither
3COM nor any Applicable Purchaser has failed to pay
any amount required to be paid by this Agreement on
the date such amount first became due, any
supplemental payment required by the preceding
sentence shall not exceed (1) eighty-five percent
(85%) of Stipulated Loss Value on the Designated
Sale Date, less (2) any Direct Payments to
Participants and any Deposit Taker Losses. Any
supplemental payment payable to BNPLC by 3COM,
rather than by the Applicable Purchaser, pursuant to
this clause (ii) is hereinafter referred to as the
"Shortage Amount." If the net cash price actually
paid by the Applicable Purchaser to BNPLC exceeds
the Purchase Price and all other sums that are then
due from 3COM to BNPLC, 3COM shall be entitled to
such excess.
If any amount payable to BNPLC pursuant to this subparagraph
2(a) is not actually paid to BNPLC on the Designated Sale
Date, 3COM shall pay interest on the past due amount computed
at the Default Rate from the Designated Sale Date. However,
Tenant shall be entitled to a reduction of the interest
required by the preceding sentence equal to the Base Rent, if
any, paid by Tenant as provided in Paragraph 17 of the Lease
for any holdover period after the Designated Sale Date.
(b) Election by 3COM. 3COM shall have the right to
elect whether it will satisfy the obligations set out in
clause (i) or (ii) of the preceding Paragraph 2(a); provided,
however, that the following conditions are satisfied:
(1) To give BNPLC the opportunity to have the
Fair Market Value determined by an appraiser as provided
in Paragraph 1(d) before the Designated Sale Date, 3COM
must, unless 3COM concedes that Fair Market Value will
not be less than fifteen percent (15%) of Stipulated Loss
Value on the Designated Sale Date, provide BNPLC with a
Remarketing Notice. "Remarketing Notice" means a notice
given by 3COM to BNPLC (and to each of the Participants)
no earlier than one hundred eighty (180) days before the
Designated Sale Date and no later than ninety (90) days
before the Designated Sale Date, specifying that 3COM
does not concede that the Fair Market Value is equal to
or greater than fifteen percent (15%) of the Stipulated
Loss Value. A Remarketing Notice will be required only
if 3COM does not concede that Fair Market Value will
equal or exceed fifteen percent (15%) of Stipulated Loss
Value on the Designated Sale Date. But if for any reason
(including but not limited to any acceleration of the
Designated Sale Date pursuant to clause (2) of the
definition of Designated Sale Date above) 3COM fails to
provide a Remarketing Notice within the time periods
specified in the definition of Remarketing Notice above,
Fair Market Value shall, for purposes of this Agreement,
be deemed to be no less than fifteen percent (15%) of
Stipulated Loss Value on the Designated Sale Date.
(2) To give BNPLC the opportunity to prepare
the Required Documents before the Designated Sale Date,
3COM must, if it is to elect to satisfy the obligations
set forth in clause (ii) of Paragraph 2(a), irrevocably
specify an Applicable Purchaser in notice to BNPLC given
at least seven (7) days prior to the Designated Sale
Date. If for any reason 3COM fails to so specify an
Applicable Purchaser, 3COM shall be deemed to have
irrevocably elected to satisfy the obligations set forth
in clause (i) of Paragraph 2(a).
(c) Termination of 3COM's Option To Purchase. Without
limiting BNPLC's right to require 3COM to satisfy the
obligations imposed by Paragraph 2(a), 3COM shall have no
further option hereunder to purchase the Property if either:
(1) 3COM shall have elected to satisfy its
obligations under clause (ii) of Paragraph 2(a) on a
Designated Sale Date and BNPLC shall have elected to keep the
Property on such Designated Sale Date in accordance with
clause (ii) of Paragraph 2(a); or
(2) 3COM shall have failed on a Designated Sale
Date to make or cause to be made all payments to BNPLC
required by this Agreement or by the Lease and such failure
shall have continued beyond the thirty (30) day period for
tender specified in the next sentence.
If BNPLC does not receive all payments due under the Lease and
all payments required hereunder on a Designated Sale Date,
3COM may nonetheless tender to BNPLC the full Purchase Price
and all amounts then due under the Lease, together with
interest on the total Purchase Price computed at the Default
Rate from the Designated Sale Date to the date of tender, and
if presented with such a tender within thirty (30) days after
the applicable Designated Sale Date, BNPLC must accept it and
promptly thereafter deliver any Escrowed Proceeds and a deed
and all other Required Documents listed in Paragraph 3.
(d) Payment to BNPLC. All amounts payable under the
preceding Paragraphs 2(a) or 2(c) by 3COM and, if applicable,
by the Applicable Purchaser must be paid directly to BNPLC,
and no payment to any other party shall be effective for the
purposes of this Agreement. In addition to the payments
required under Paragraph 2(a) hereunder, on the Designated
Sale Date 3COM must pay all amounts then due to BNPLC under
the Lease. BNPLC will remit any excess amounts due 3COM
pursuant to the last sentence of clause (ii) of Paragraph 2(a)
promptly after BNPLC's receipt of the same and in no event
later than thirty (30) days thereafter.
(e) Effect of Options on Subsequent Title Encumbrances.
It is the intent of BNPLC and 3COM that any conveyance of the
Property to 3COM or any Applicable Purchaser pursuant to this
Agreement shall cut off and terminate any interest in the
Property claimed by, through or under BNPLC, including the
Participants (but not any unsatisfied obligations to BNPLC
under the Lease, the Environmental Indemnity or this
Agreement), including but not limited to any Prohibited
Encumbrances and any leasehold or other interests conveyed by
BNPLC in the ordinary course of BNPLC's business. Anyone
accepting or taking any interest in the Property by or through
BNPLC after the date of this Agreement shall acquire such
interest subject to the rights and options granted 3COM
hereby. Further, 3COM and any Applicable Purchaser shall be
entitled to pay any payment required by this Agreement for the
purchase of the Property directly to BNPLC notwithstanding any
prior conveyance or assignment by BNPLC, voluntary or
otherwise, of any right or interest in this Agreement or the
Property, and neither 3COM nor any Applicable Purchaser shall
be responsible for the proper distribution or application of
any such payments by BNPLC.
3. Terms of Conveyance Upon Purchase. Immediately
after receipt of all payments to BNPLC required pursuant to
the preceding Paragraph 2, BNPLC must, unless it is to keep
the Property as permitted by Paragraph 2(a)(ii), deliver all
Escrowed Proceeds, if any, and convey all of its right, title
and interest in the Property by grant deed to 3COM or the
Applicable Purchaser, as the case may be, subject only to the
Permitted Encumbrances (as defined in the Lease) and any other
encumbrances that do not constitute Prohibited Encumbrances.
However, such conveyance shall not include the right to
receive any payment under the Lease then due BNPLC or that may
become due thereafter because of any expense or liability
incurred by BNPLC resulting in whole or in part from events or
circumstances occurring before such conveyance. All costs of
such purchase and conveyance of every kind whatsoever, both
foreseen and unforeseen, shall be the responsibility of the
purchaser, and the form of grant deed used to accomplish such
conveyance shall be substantially in the form attached as
Exhibit B. With such grant deed, BNPLC shall also tender to
3COM or the Applicable Purchaser, as the case may be, the
following, each fully executed and, where appropriate,
acknowledged on BNPLC's behalf by an officer of BNPLC: (1) a
Preliminary Change of Ownership Report in the form attached as
Exhibit C, (2) a Xxxx of Sale and Assignment of Contract
Rights and Intangible Assets in the form attached as Exhibit
D, (3) an Acknowledgment of Disclaimer of Representations and
Warranties, in the form attached as Exhibit E, which 3COM or
the Applicable Purchaser must execute and return to BNPLC, (5)
a Documentary Transfer Tax Request in the form attached as
Exhibit F, (6) a Secretary's Certificate in the form attached
as Exhibit G, (7) a letter to the title insurance company
insuring title to the Property in the form attached as Exhibit
H, and (8) a certificate concerning tax withholding in the
form attached as Exhibit I.
4. Survival of 3COM's Obligations.
(a) Status of this Agreement. Except as expressly
provided in the last sentence of this subparagraph and
elsewhere herein, this Agreement shall not terminate, nor
shall 3COM have any right to terminate this Agreement, nor
shall 3COM be entitled to any reduction of the Purchase Price
hereunder, nor shall the obligations of 3COM to BNPLC under
Paragraph 2 be affected by reason of (i) any damage to or the
destruction of all or any part of the Property from whatever
cause, (ii) the taking of or damage to the Property or any
portion thereof under the power of eminent domain or otherwise
for any reason, (iii) the prohibition, limitation or
restriction of 3COM's use of all or any portion of the
Property or any interference with such use by governmental
action or otherwise, (iv) any eviction of 3COM or any party
claiming under 3COM by paramount title or otherwise, (v)
3COM's prior acquisition or ownership of any interest in the
Property, (vi) any default on the part of BNPLC under this
Agreement, the Lease or any other agreement to which BNPLC is
a party, or (vii) any other cause, whether similar or
dissimilar to the foregoing, any existing or future law to the
contrary notwithstanding. It is the intention of the parties
hereto that the obligations of 3COM hereunder (including
3COM's obligation to make payments under - and, if applicable,
to cause the Applicable Purchaser to make payments under -
Paragraph 2) shall be separate and independent of the
covenants and agreements of BNPLC. Accordingly, the Purchase
Price and the Shortage Amount, as the case may be under
Paragraph 2, shall continue to be payable in all events, and
the obligations of 3COM hereunder shall continue unaffected by
any breach of this Agreement by BNPLC. However, nothing in
this subparagraph, nor the performance without objection by
3COM of its obligations hereunder, shall be construed as a
waiver by 3COM of any right 3COM may have at law or in equity,
following any failure by BNPLC to tender a grant deed and the
other Required Documents as required by Paragraph 3 upon the
tender by 3COM and/or the Applicable Purchaser of the payments
required by Paragraph 2 and of the other documents to be
executed in favor of BNPLC at the closing of the sale
hereunder, to (i) recover monetary damages proximately caused
by such failure of BNPLC if BNPLC does not cure the failure
within thirty (30) days after 3COM demands a cure by written
notice to BNPLC, or (ii) a decree compelling performance of
BNPLC's obligation to so tender a grant deed and the Required
Documents.
(b) Remedies Under the Lease and the Environmental
Indemnity. No repossession of or re-entering upon the
Property or exercise of any other remedies available under the
Lease or the Environmental Indemnity shall relieve 3COM of its
liabilities and obligations hereunder, all of which shall
survive the exercise of remedies under the Lease and
Environmental Indemnity. 3COM acknowledges that the
consideration for this Agreement is separate and independent
of the consideration for the Lease and the Environmental
Indemnity, and 3COM's obligations hereunder shall not be
affected or impaired by any event or circumstance that would
excuse 3COM from performance of its obligations under the
Lease or the Environmental Indemnity.
5. Remedies Cumulative. No right or remedy herein
conferred upon or reserved to BNPLC is intended to be
exclusive of any other right or remedy BNPLC has with respect
to the Property, and each and every right and remedy shall be
cumulative and in addition to any other right or remedy given
hereunder or now or hereafter existing at law or in equity or
by statute. In addition to other remedies available under
this Agreement, either party shall be entitled, to the extent
permitted by applicable law, to a decree compelling
performance of any of the other party's agreements hereunder.
6. No Implied Waiver. The failure of either party to
this Agreement to insist at any time upon the strict
performance of any covenant or agreement of the other party or
to exercise any remedy contained in this Agreement shall not
be construed as a waiver or a relinquishment thereof for the
future. The waiver by either party of or redress for any
violation of any term, covenant, agreement or condition
contained in this Agreement shall not prevent a subsequent
act, which would have originally constituted a violation, from
having all the force and effect of an original violation. No
express waiver by either party shall affect any condition
other than the one specified in such waiver and that one only
for the time and in the manner specifically stated. A receipt
by BNPLC of any payment hereunder with knowledge of the breach
of this Agreement shall not be deemed a waiver of such breach,
and no waiver by either party of any provision of this
Agreement shall be deemed to have been made unless expressed
in writing and signed by the waiving party.
7. Attorneys' Fees and Legal Expenses. If either party
commences any legal action or other proceeding to enforce any
of the terms of this Agreement or the documents and agreements
referred to herein, or because of any breach by the other
party or dispute hereunder or thereunder, the successful or
prevailing party, shall be entitled to recover from the
nonprevailing party all Attorneys' Fees incurred in connection
therewith, whether or not such controversy, claim or dispute
is prosecuted to a final judgment. Any such Attorneys' Fees
incurred by either party in enforcing a judgment in its favor
under this Agreement shall be recoverable separately from such
judgment, and the obligation for such Attorneys' Fees is
intended to be severable from other provisions of this
Agreement and not to be merged into any such judgment.
8. Estoppel Certificate. 3COM and BNPLC will each,
upon not less than twenty (20) days' prior written request by
the other, execute, acknowledge and deliver to the requesting
party a written statement certifying that this Agreement is
unmodified and in full effect (or, if there have been
modifications, that this Agreement is in full effect as
modified, and setting forth such modification) and either
stating that no default exists hereunder or specifying each
such default of which the signer may have knowledge. Any such
statement may be relied upon by any Participant or prospective
purchaser or assignee of BNPLC with respect to the Property.
Neither 3COM nor BNPLC shall be required to provide such a
certificate more frequently than once in any six month period;
provided, however, that if either party determines that there
is a significant business reason for requiring a current
certificate, including, without limitation, the need to
provide such a certificate to a prospective purchaser or
assignee, the other shall provide a certificate upon request
whether or not it had provided a certificate within the prior
six month period.
9. Notices. Each provision of this Agreement referring
to the sending, mailing or delivery of any notice or referring
to the making of any payment to BNPLC, shall be deemed to be
complied with when and if the following steps are taken:
(a) All payments required to be made by 3COM or the
Applicable Purchaser to BNPLC hereunder shall be paid to BNPLC
in immediately available funds by wire transfer to:
Federal Reserve Bank of San Francisco
Account: Banque Nationale de Paris
ABA #: 000000000
Reference: 3COM (Phase I
Transactions)
or at such other place and in such other manner as
BNPLC may designate in a notice to 3COM (provided BNPLC
will not unreasonably designate a method of payment other
than wire transfer). Time is of the essence as to all
payments to BNPLC under this Agreement. Any payments
required to be made by BNPLC to 3COM pursuant to the last
sentence of clause (ii) of Paragraph 2(a) shall be paid
to 3COM in immediately available funds at the address of
3COM set forth below or as 3COM may otherwise direct by
written notice sent in accordance herewith.
(b) All notices, demands and other communications to be
made hereunder to the parties hereto shall be in writing (at
the addresses set forth below) and shall be given by any of
the following means: (A) personal service, with proof of
delivery or attempted delivery retained; (B) electronic
communication, whether by telex, telegram or telecopying (if
confirmed in writing sent by United States first class mail,
return receipt requested); or (C) registered or certified
first class mail, return receipt requested. Such addresses
may be changed by notice to the other parties given in the
same manner as provided above. Any notice or other
communication sent pursuant to clause (A) or (C) hereof shall
be deemed received (whether or not actually received) upon
first attempted delivery at the proper notice address on any
Business Day between 9:00 A.M. and 5:00 P.M., and any notice
or other communication sent pursuant to clause (B) hereof
shall be deemed received upon dispatch by electronic means.
Address of BNPLC:
BNP Leasing Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxx
Telecopy: (000) 000-0000
With a copy to:
Banque Nationale de Paris, San Francisco
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:Xxxxxxxx Xxx or Will Xx
Xxxxxx
Telecopy: (000) 000-0000
And with a copy to:
Xxxxx Xxxxxx
Xxxxxxxx & Knight, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Address of 3COM:
3Com Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Legal Dept. Mail Stop 1308
Telecopy: (000) 000-0000
With copies to:
3Com Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Real Estate Dept. Mail
Stop 1220
Telecopy: (000) 000-0000; and
3Com Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Treasury Dept. Mail Stop 1307
Telecopy: (000) 000-0000; and
Xxxx Xxxx Xxxx & Freidenrich
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
10. Severability. Each and every covenant and agreement
of 3COM contained in this Agreement is, and shall be construed
to be, a separate and independent covenant and agreement. If
any term or provision of this Agreement or the application
thereof to any person or circumstances shall to any extent be
invalid and unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby. Further, the
obligations of 3COM hereunder, to the maximum extent possible,
shall be deemed to be separate, independent and in addition
to, not in lieu of, the obligations of 3COM under the Lease.
In the event of any inconsistency between the terms of this
Agreement and the terms and provisions of the Lease, the terms
and provisions of this Agreement shall control.
11. Entire Agreement. This Agreement and the documents
and agreements referred to herein set forth the entire
agreement between the parties concerning the subject matter
hereof and no amendment or modification of this Agreement
shall be binding or valid unless expressed in a writing
executed by both parties hereto.
12. Paragraph Headings. The paragraph headings
contained in this Agreement are for convenience only and shall
in no way enlarge or limit the scope or meaning of the various
and several paragraphs hereof.
13. Gender and Number. Within this Agreement, words of
any gender shall be held and construed to include any other
gender and words in the singular number shall be held and
construed to include the plural, unless the context otherwise
requires.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
HAVE BEEN MADE UNDER AND SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF CALIFORNIA.
15. Successors and Assigns. The terms, provisions,
covenants and conditions hereof shall be binding upon 3COM and
BNPLC and their respective permitted successors and assigns
and shall inure to the benefit of 3COM and BNPLC and all
permitted transferees, mortgagees, successors and assignees of
3COM and BNPLC with respect to the Property; provided, that
the rights of BNPLC hereunder shall not pass to 3COM or any
Applicable Purchaser or any subsequent owner claiming through
them. Prior to the Designated Sale Date BNPLC may transfer,
assign and convey, in whole or in part, the Property and any
and all of its rights under this Agreement (subject to the
terms of this Agreement) by any conveyance that constitutes a
Permitted Transfer, but not otherwise. If BNPLC sells or
otherwise transfers the Property and assigns its rights under
this Agreement and the Lease pursuant to a Permitted Transfer,
then to the extent BNPLC's successor in interest confirms its
liability for the obligations imposed upon BNPLC by this
Agreement and the Lease on and subject to the express terms
set out herein and therein, BNPLC shall thereby be released
from any further obligations thereafter arising under this
Agreement and the Lease, and 3COM will look solely to each
successor in interest of BNPLC for performance of such
obligations.
16. WAIVER OF JURY TRIAL. BNPLC AND 3COM EACH HEREBY
WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THE LEASE, THIS
AGREEMENT OR ANY OTHER DOCUMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all
disputes that may be filed in any court and that relate to the
subject matter of this transaction, including without
limitation, contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. 3COM
and BNPLC each acknowledge that this waiver is a material
inducement to enter into a business relationship, that each
has already relied on the waiver in entering into this
Agreement and the other documents referred to herein, and that
each will continue to rely on the waiver in their related
future dealings. 3COM and BNPLC each further warrant and
represent that it has reviewed this waiver with its legal
counsel, and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LEASE, THIS AGREEMENT OR THE ENVIRONMENTAL
INDEMNITY. In the event of litigation, this Agreement may be
filed as a written consent to a trial by the court.
17. Security for 3COM's Obligations. 3COM's
obligations under this Agreement are secured by the Pledge
Agreement, reference to which is hereby made for a description
of the Collateral covered thereby and the rights and remedies
provided to BNPLC thereby. Although the collateral agent
appointed for BNPLC as provided in the Pledge Agreement shall
be entitled to hold all Collateral as security for the full
and faithful performance by 3COM of 3COM's covenants and
obligations under this Agreement, the Collateral shall not be
considered an advance payment of the Purchase Price or any
Shortage Amount or a measure of BNPLC's damages should 3COM
breach this Agreement. If 3COM does breach this Agreement and
fails to cure the same within any time specified herein for
the cure, BNPLC may, from time to time, without prejudice to
any other remedy and without notice to 3COM, require the
collateral agent to immediately apply the proceeds of any
disposition of the Collateral (and any cash included in the
Collateral) to amounts then due hereunder from 3COM. If BNPLC
assigns its interest in the Property before the Designated
Sale Date, BNPLC may also assign BNPLC's interest in the
Collateral to the assignee.
18. Replacement of Participants Proposed by 3COM. So
long as no Event of Default has occurred and is continuing,
BNPLC shall not unreasonably withhold its approval for a
substitution under the Participation Agreement of a new
Participant proposed by 3COM for any Participant, the Deposit
Taker for whom has ceased to be a Qualified Deposit Taker;
provided, however, that (A) the proposed substitution can be
accomplished without a release or breach by BNPLC of its
rights and obligations under the Participation Agreement or
the "Underlying Documents" described therein (including this
Purchase Agreement); (B) the new Participant will agree (by
executing Supplements to the Participation Agreement and
Pledge Agreement as therein contemplated and by other
agreements as may be reasonably required by BNPLC and 3COM) to
become a party to the Participation Agreement and to the
Pledge Agreement, to designate a Qualified Deposit Taker as
the Deposit Taker for it under the Pledge Agreement and to
accept a Percentage under the Participation Agreement equal to
the Percentage of the Participant to be replaced; (C) the new
Participant (or 3COM) will provide the funds required to pay
the termination fee by Section 6.4 of the Participation
Agreement to accomplish the substitution; (D) 3COM (or the new
Participant) agrees in writing to indemnify and defend BNPLC
for any and all Losses incurred by BNPLC in connection with or
because of the substitution, including the cost of preparing
supplements to the Participation Agreement and the Pledge
Agreement and including any cost of defending and paying any
claim asserted by the Participant to be replaced because of
the substitution (but not including any liability of BNPLC to
such Participant for damages caused by BNPLC's bad faith or
gross negligence in the performance of BNPLC's obligations
under the Participation Agreement prior to the substitution);
and (E) the new Participant shall be a reputable financial
institution having a net worth of no less than seven and one
half percent (7.5%) of total assets and total assets of no
less than $10,000,000,000.00 (all according to then recent
audited financial statements). BNPLC shall attempt in good
faith to assist (and cause its Affiliate, Banque Nationale de
Paris, to attempt in good faith to assist) 3COM in identifying
a new Participant that 3COM may propose to substitute for an
existing Participant pursuant to this Paragraph, as 3COM may
reasonably request from time to time. However, in no event
shall BNPLC itself, or any of its Affiliates, be required to
take the Percentage of any Participant to be replaced.
19. Security for BNPLC's Obligations. To secure 3COM's
right to recover any damages caused by a breach of Paragraph 3
by BNPLC, including any such breach caused by a rejection or
termination of this Agreement in any bankruptcy or insolvency
proceeding instituted by or against BNPLC, as debtor, BNPLC
does hereby grant to 3COM a lien and security interest against
all rights, title and interests of BNPLC from time to time in
and to the Property. 3COM may enforce such lien and security
interest judicially after any such breach by BNPLC, but not
otherwise. 3COM waives any right it has to seek a deficiency
judgement against BNPLC in any action brought for a judicial
foreclosure of such lien and security interest, and in
connection therewith, BNPLC hereby acknowledges that it shall
have no right of redemption following any such judicial
foreclosure pursuant to Cal. Code Civ. Procedure Section 729.
Contemporaneously with the execution of this Agreement, 3COM
and BNPLC will execute a memorandum of this Agreement which is
in recordable form and which specifically references the lien
granted in this Paragraph, and 3COM shall be entitled to
record such memorandum at any time prior to the Designated
Sale Date.
20. Not a Partnership, Etc. NOTHING IN THIS PURCHASE
AGREEMENT IS INTENDED TO BE OR TO CREATE ANY PARTNERSHIP,
JOINT VENTURE, OR OTHER JOINT ENTERPRISE BETWEEN BNPLC AND
3COM. NEITHER THE EXECUTION OF THIS PURCHASE AGREEMENT NOR
THE ADMINISTRATION OF THIS PURCHASE AGREEMENT OR OTHER
DOCUMENTS REFERENCED HEREIN BY BNPLC, NOR ANY OTHER RIGHT,
DUTY OR OBLIGATION OF BNPLC UNDER OR PURSUANT TO THIS PURCHASE
AGREEMENT OR SUCH DOCUMENTS IS INTENDED TO BE OR TO CREATE ANY
FIDUCIARY OBLIGATIONS OF BNPLC TO 3COM.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT
BLANK]
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
"BNPLC"
BNP LEASING CORPORATION, a
Delaware corporation
By: /s/ Xxxxx X. Xxx
--------------------
Xxxxx X. Xxx, Vice
President
"3COM"
3COM CORPORATION, a
California corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxxxxxx X. Xxxxxxx,
Chief Financial Officer
Exhibit A
Legal Description
REAL PROPERTY in the City of Santa Xxxxx, County of Santa
Xxxxx, State of California, described as follows:
Parcel One
Parcel A, as shown on that certain Parcel Map recorded July 7,
1989, Book 602 of Maps, at pages 34 and 35, Records of Santa
Xxxxx County, California.
EXCEPTING THEREFROM that portion described in that certain Lot
Line Adjustment dated August 16, 1991 in Book L826, at page
0826 of Official Records and described as follows:
Beginning at the Southwest corner of said Parcel "A"; thence
on the Westerly and Northerly lines of said Parcel "A" the
following 5 courses:
1. North 00 12' 36" East a distance of 665.00 feet;
2. North 45 12' 36" East a distance of 64.00 feet;
3. North 00 12' 36" East a distance of 82.98 feet to a
point on a non-tangent curve the center of which bears
North 29 17' 50" West a distance of 9000.00 feet;
4. Northeasterly a distance of 79.37 feet on the arc of
said curve to the left through a central angle of 00 30'
19" (chord bears North 60 27' 01" East a distance of
79.37 feet, to a point on said curve;
5. North 66 32' 39" East, departing said curve, a
distance of 75.89 feet;
Thence South 62 07' 20" West a distance of 104.00 feet to a
point of curvature; thence Southwesterly a distance of 9.53
feet on the arc of said 10136.00 foot radius curve to the
right through a central angle of 00 03' 14" (chord bears
South 62 08' 57" West a distance of 9.53 feet) to a point on
said curve; thence South 00 12' 36" West a distance of 809.62
feet to a point on the South line of said parcel "A"; thence
North 89 47' 24" West, on said South line, a distance of
83.50 feet to the point of beginning.
ALSO EXCEPTING THEREFROM that portion of said land as
condemned to the State of California by Order recorded March
10, 1993 in Book M660, page 1700, described as follows:
Being a portion of Parcel A, as shown on that certain Parcel
Map filed for record in Book 602 of Maps at pages 34 and 35
Santa Xxxxx County Records described as follows:
Beginning at the Northeast corner of said Parcel A; thence
from said point of beginning, along the Northerly line of said
Parcel A, S 67 25' 20" W 39.39 feet; thence leaving said
Northerly line S 41 34' 47" E 73.60 feet to a point in the
Easterly line of said Parcel A; thence along said Easterly
line of N 10 04' 48" W 71.28 feet to the point of beginning.
Parcel Two
That portion of Parcel B, as shown on that certain Parcel Map
recorded July 7, 1989, Book 602 of Maps, at pages 34 and 35,
Records of Santa Xxxxx County, California and described in
that certain Lot Line Adjustment dated August 16, 1991 in Book
L826, at page 0826 of Official Records and described as
follows:
Beginning at a point on the most Northerly Southeasterly line
of said Parcel "B" which bears South 66 32' 39" West a
distance of 226.19 feet from the most Easterly corner thereof;
thence South 10 57' 34" East a distance of 218.69 feet;
thence North 89 47' 24" West a distance of 324.26 feet;
thence North 77 17' 24" West a distance of 141.24 feet;
thence North 66 32' 39" East a distance of 458.33 feet to the
point of beginning.
APN: 000-00-000, 16
ARB: 000-00-000, 046.02, 046.02.01
Exhibit B
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [3Com Corporation or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
NAME: [3Com Corporation or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, BNP LEASING CORPORATION, a Delaware corporation
("BNPLC"), hereby grants to [3COM or the Applicable Purchaser]
all of BNPLC's interest in the land situated in the County of
Santa Xxxxx, State of California, described on Annex A
attached hereto and hereby made a part hereof, together with
the improvements currently located on such land and any
easements, rights-of-way, privileges, appurtenances and other
rights pertaining to such land; provided, however, that this
grant is subject to the following, as well as the Permitted
Encumbrances described on Annex B:
1. Real Estate Taxes not yet due and payable;
2. General or Special Assessments due and payable
after the date hereof; and
3. Encroachments, variations in area or in
measurements, boundary line disputes, roadways and
other matters not of record which would be disclosed by
a survey and inspection of the property conveyed
hereby.
BNP LEASING CORPORATION
Date: As of ____________ By:
Its: Vice President
Attest:
Its: Assistant Secretary
STATE OF TEXAS ) ) SS
COUNTY OF DALLAS )
On ___________________ before me,
, personally appeared
and
, personally known to
me (or proved to me on the basis of satisfactory evidence) to
be the persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same
in their authorized capacities, and that by their signatures
on the instrument the person, or the entity upon behalf of
which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature
Annex A
LEGAL DESCRIPTION
REAL PROPERTY in the City of Santa Xxxxx, County of Santa
Xxxxx, State of California, described as follows:
Parcel One
Parcel A, as shown on that certain Parcel Map recorded July 7,
1989, Book 602 of Maps, at pages 34 and 35, Records of Santa
Xxxxx County, California.
EXCEPTING THEREFROM that portion described in that certain Lot
Line Adjustment dated August 16, 1991 in Book L826, at page
0826 of Official Records and described as follows:
Beginning at the Southwest corner of said Parcel "A"; thence
on the Westerly and Northerly lines of said Parcel "A" the
following 5 courses:
1. North 00 12' 36" East a distance of 665.00 feet;
2. North 45 12' 36" East a distance of 64.00 feet;
3. North 00 12' 36" East a distance of 82.98 feet to a
point on a non-tangent curve the center of which bears
North 29 17' 50" West a distance of 9000.00 feet;
4. Northeasterly a distance of 79.37 feet on the arc of
said curve to the left through a central angle of 00 30'
19" (chord bears North 60 27' 01" East a distance of 79.37
feet, to a point on said curve;
5. North 66 32' 39" East, departing said curve, a
distance of 75.89 feet;
Thence South 62 07' 20" West a distance of 104.00 feet to a
point of curvature; thence Southwesterly a distance of 9.53
feet on the arc of said 10136.00 foot radius curve to the
right through a central angle of 00 03' 14" (chord bears
South 62 08' 57" West a distance of 9.53 feet) to a point on
said curve; thence South 00 12' 36" West a distance of 809.62
feet to a point on the South line of said parcel "A"; thence
North 89 47' 24" West, on said South line, a distance of
83.50 feet to the point of beginning.
ALSO EXCEPTING THEREFROM that portion of said land as
condemned to the State of California by Order recorded March
10, 1993 in Book M660, page 1700, described as follows:
Being a portion of Parcel A, as shown on that certain Parcel
Map filed for record in Book 602 of Maps at pages 34 and 35
Santa Xxxxx County Records described as follows:
Beginning at the Northeast corner of said Parcel A; thence
from said point of beginning, along the Northerly line of said
Parcel A, S 67 25' 20" W 39.39 feet; thence leaving said
Northerly line S 41 34' 47" E 73.60 feet to a point in the
Easterly line of said Parcel A; thence along said Easterly
line of N 10 04' 48" W 71.28 feet to the point of beginning.
Parcel Two
That portion of Parcel B, as shown on that certain Parcel Map
recorded July 7, 1989, Book 602 of Maps, at pages 34 and 35,
Records of Santa Xxxxx County, California and described in
that certain Lot Line Adjustment dated August 16, 1991 in Book
L826, at page 0826 of Official Records and described as
follows:
Beginning at a point on the most Northerly Southeasterly line
of said Parcel "B" which bears South 66 32' 39" West a
distance of 226.19 feet from the most Easterly corner thereof;
thence South 10 57' 34" East a distance of 218.69 feet;
thence North 89 47' 24" West a distance of 324.26 feet;
thence North 77 17' 24" West a distance of 141.24 feet;
thence North 66 32' 39" East a distance of 458.33 feet to the
point of beginning.
APN: 000-00-000, 16
ARB: 000-00-000, 046.02, 046.02.01
Annex B
Permitted Encumbrances
[NOTE: TO THE EXTENT THAT SPECIFIC ENCUMBRANCES (OTHER THAN
"PROHIBITED LIENS") ARE IDENTIFIED IN ADDITION TO THOSE
DESCRIBED BELOW, SUCH ADDITIONAL ENCUMBRANCES WILL BE ADDED TO
THE LIST BELOW AND THIS "NOTE" WILL BE DELETED BEFORE THIS
DEED IS ACTUALLY EXECUTED AND DELIVERED BY BNPLC. SUCH
ADDITIONAL ENCUMBRANCES WOULD INCLUDE ANY NEW ENCUMBRANCES
APPROVED BY BNPLC AS "PERMITTED ENCUMBRANCES" FROM TIME TO
TIME BECAUSE OF 3COM'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL
TO AN ADJUSTMENT AS PROVIDED IN THE LEASE.]
This conveyance is subject to any encumbrances that do
not constitute "Prohibited Encumbrances" (as defined in the
Purchase Agreement pursuant to which this Deed is being
delivered), including County and city taxes for the Fiscal
Year _______, a lien not yet due or payable, and including the
following matters to the extent the same are still valid and
in force:
1. EASEMENT shown on map filed for record in Book 460
of Maps, page 44 and 45, and incidents thereto
Purpose : Public Utility Easement
Affects : A portion of the
Southerly 10 feet of
(Affects Parcels A and B)
2. DECLARATION of Reciprocal Easements, Covenants, and
Restrictions for the purpose stated herein and subject to
the terms and conditions therein, executed by Dairy
Associates, L.P., a California Limited Partnership,
recorded July 7, 1989 in Book L013, page 971 of Official
Records.
(Affects Parcels A and B)
Amendment No. 1 of Declaration of Reciprocal Easements,
Covenants and Restrictions recorded August 16, 1991 in Book
L826, page 830 of Official Records.
3. AGREEMENT on the terms and conditions contained
therein,
For : Agreement regarding
number of required parking spaces
Between : The City of Santa
Xxxxx, a municipal corporation
And : Dairy Associates, LP.,
a California Limited Partnership
Recorded : March 6, 1990 in Book
L278, page 2239, Official Records.
(Affects Parcels A and B)
4. EASEMENT for the purposes stated herein and
incidents thereto
Purpose : Construction and
reconstructing, installing, operating,
maintaining, repairing and/or replacing
underground electrical distribution and/or
communication systems and appurtenances
thereto, including a reasonable right of
ingress and egress over adjoining lands of
Grantor
Granted to : City of Santa Xxxxx, a
California municipal corporation
Recorded : April 4, 1990 in Book
L310, page 1548, Official Records
Affects : As follows:
Beginning at a point in the Southerly line of Parcel 2 of
that Parcel Map filed for record in Book 460 of Maps at
pages 44-45, Santa Xxxxx County Records, distant thereon
North 89 47' 24" West, 67.50 feet from the Southeasterly
corner of said Parcel 2; thence from said point of
beginning, the following forty-eight courses: South 89
47' 24" East, 30.00 feet; North 0 12' 36" East, 19.10
feet; South 89 47' 24" West, 10.00 feet; North 29 47' 24"
West, 43.00 feet; North 18 32' 24" West, 89.00 feet; North
29 47' 24" West, 119 feet; North 0 12' 36" East, 235
feet; North 11 02' 24" West, 157 feet; South 78 57' 36"
West, 6.00 feet; North 21 02' 24" West, 119.00 feet; South
88 57' 36" West, 73.00 feet; South 58 57' 36" West, 51.00
feet; South 88 57' 36" West, 80.00 feet; North 46 02' 24"
West, 11.00 feet; South 43 57' 36" West, 15.00 feet; South
46 02' 24" East, 20.00 feet; North 43 57' 36" East, 9.86
feet; North 88 57' 36" East, 69.77 feet; South 1 02' 24"
East, 22.00 feet; North 88 57' 36" East, 15.00 feet; North
1 02' 24" West, 24.78 feet; North 58 57' 36" East, 45.43
feet; North 88 57' 36" East, 63.32 feet; South 21 02' 24"
East, 145.68 feet; South 11 02' 24" East 121.11 feet;
South 0 12' 36" West, 234.02 feet; North 89 47' 24" West,
63.00 feet; North 59 47' 24" West, 10.00 feet; North 89
47' 24" West, 10.00 feet; South 60 12' 36" West, 10.00
feet; North 89 47' 24" West, 286.00 feet; North 0 12' 36"
East, 20.00 feet; South 89 47' 24" East, 2.50 feet; North
0 12' 36" East, 15.00 feet; North 89 47' 24" West, 15.00
fee; South 0 12' 36" West, 294.00 feet; North 0 12' 36"
East, 20.00 feet; South 89 47' 24" East, 2.50 feet; North
0 12' 36" East, 15.00 feet; North 89 47' 24" West, 15.00
feet; South 0 12' 36" West, 15.00 feet; South 89 47' 24"
East, 2.50 feet; South 0 12' 36" West, 170.00 feet; South
44 37' 45" East, 75.00 feet; South 0 12' 36" West, 3.76
feet; thence, from a tangent bearing South 85 11' 34"
East, along the arc of a curve concave to the South, having
a radius of 1040 feet, through a central angle of 4 30'
30" an arc length of 81.83 feet; and the following nine
courses; North 44 47' 24" West, 44.62 feet; North 89 47'
24" West, 53.50 feet; North 44 37' 45" West, 55.39 feet;
North 0 12' 36" East, 135.87 feet; South 89 47' 24" East,
684.55 feet; South 29 47' 24" East, 112.24 feet; South 18
32' 24" East, 89.00 feet; South 29 47' 24" East, 21.30
feet; South 0 12' 36" West, 33.67 feet to the point of
beginning.
5. EASEMENT for the purposes stated herein and
incidents thereto
Purpose : Underground pipes
Granted to : Pacific Gas and
Electric Company, a California corporation
Recorded : October 22, 1990 in
Book L515, page 1223, Official Records
Affects : Parcel A as shown upon
the Parcel Map filed for record in Book 602
of Parcel Maps at page 35, Santa Xxxxx County
Records.
Reference is hereby made to the record for further
particulars and a map of said easement, no description was
recorded.
6. AGREEMENT on the terms and conditions contained
therein,
For : Deferred obligation to
construct stoplight
Between : City of Santa Clara,
California, a municipal corporation
And : Dairy Associates, LP.
Recorded : December 17, 1990 in
Book L568, page 1565, Official Records.
(Affects Parcels A and B)
7. LACK OF ABUTTER'S RIGHTS to and from Xxxxx 000 -
Xxxxx Xxx Xxxxxxx, lying adjacent to the Northerly line of
Parcels A & B of said land, said rights having been
released and relinquished
By : Dairy Associates, LP.,
a California Limited Partnership
To : The State of
California
Recorded : August 16, 1991 in
Book L826, page 839, Official Records.
8. EASEMENT for the purposes stated herein and
incidents thereto
Purpose : An easement for cut
and fill slope purposes
Granted to : The State of
California
Recorded : August 16, 1991 in
Book L826, page 839, Official Records
Affects : As follows:
Commencing at the most Southerly corner of Parcel 1
described in that certain Deed recorded August 16, 1991 in
Book L826, page 889, Official Records; thence along the
general Southerly line of said Parcel 1 the following
courses: from a tangent that bears N. 68 57' 08" E.,
along a curve to the left with a radius of 10,136.00 feet,
through an angle of 05 40' 34", an arc length of 1,004.14
feet, N. 01 05' 17" E., 3.47 feet, and from a tangent that
bears N. 61 34' 51" E., along a curve to the left with a
radius of 8999.52 feet, through an angle of 00 15' 40", an
arc length of 41.03 feet; thence leaving last said line S.
26 57' 54" E., 26.28 feet; thence from a tangent that
bears S. 63 02' 06" W., on a curve to the right with a
radius of 10,158.00 feet, through an angle of 05 58' 01",
an arc length of 1,057.88 feet to the Westerly line of the
aforesaid Parcel B; thence along last said line N. 00 50'
30" E., 23.71 feet to the point of commencement.
EXHIBIT C
PRELIMINARY CHANGE OF OWNERSHIP REPORT
THIS REPORT IS NOT A PUBLIC DOCUMENT
(To be completed by transferee (buyer) prior to
transfer of the subject property in accordance with
Section 480.3 of the Revenue and Taxation Code.)
THIS
SPACE FOR
RECORDER'S
USE
SELLER/TRANSFEROR:
SELLER RECORDING DATE: DOCUMENT NO.
BUYER/TRANSFEREE:
ASSESSOR'S IDENTIFICATION NUMBER(S)
LA ------
Page Parcel
PROPERTY ADDRESS OR LOCATION:
No
Street
City
State Zip Code
MAIL TAX INFORMATION TO:
NAME:
ADDRESS:
Street No City
State Zip Code
FOR
ASSESSOR'S
USE ONLY
Cluster OC1 OC2 DT INT RC SP$ DTT $ #
Pcl.
A Preliminary Change in Ownership Report must be filed with each conveyance
in the County Recorder's office for the county where the property is
located; this particular form may be used in all 58 counties of California.
NOTICE: A lien for property taxes applies to your property on March 1
of each year for the taxes owing in the following fiscal year, July 1
through June 30. One-half of those taxes is due November 1 and one-
half is due February 1. The first installment becomes delinquent on
December 10 and the second installment becomes delinquent on April 10.
One tax xxxx is mailed before November 1 to the owner of record. IF
THIS TRANSFER OCCURS AFTER MARCH 1 AND ON OR BEFORE DECEMBER 31, YOU
MAY BE RESPONSIBLE FOR THE SECOND INSTALLMENT OF TAXES ON FEBRUARY 1.
The property which you acquired may be subject to a supplemental tax
assessment in an amount to be determined by the Santa Xxxxx County
Assessor. For further information on your supplemental roll
obligation, please call the Santa Xxxxx County Assessor at (___) ___-
____.
PART I: TRANSFER INFORMATION Please answer all questions.
YES NO
" " A. Is this transfer solely between husband and
wife (Addition of a spouse, death of a spouse, divorce
settlement, etc.)?
" " B. Is this transaction only a correction of the
name(s) of the person(s) holding title to the property (For
example, a name change upon marriage)?
" " C. Is this document recorded to create,
terminate, or reconvey a lender's interest in the property?
" " D. Is this transaction recorded only to create,
terminate, or reconvey a security interest (e.g., cosigner)?
" " E. Is this document recorded to substitute a
trustee under a deed of trust, mortgage, or other similar
document?
" " F. Did this transfer result in the creation of a
joint tenancy in which the seller (transferor) remains as one
of the joint tenants?
" " G. Does this transfer return property to the
person who created the joint tenancy (original transferor)?
" " H. Is this transfer of property:
1. to a trust for the benefit of the
grantor, or grantor's spouse?
2. to a trust revocable by the transferor?
3. to a trust from which the property
reverts to the grantor within 12 years?
" " I. If this property is subject to a lease, is the
remaining lease term 35 years or more including written
options?
" " J. Is this a transfer from parents to children or
from children to parents?
" " K. Is this transaction to replace a principal
residence by a person 55 years of age or older?
" " L. Is this transaction to replace a principal
residence by a person who is severely disabled as defined by
Revenue and Taxation Code Section 69.5?
If you checked yes to J, K or L, an applicable claim form must be filed
with the County Assessor.
Please provide any other information that would help the Assessor to
understand the nature of the transfer.
IF YOU HAVE ANSWERED "YES" TO ANY OF THE ABOVE QUESTIONS EXCEPT J, K, OR
L, PLEASE SIGN AND DATE.
OTHERWISE COMPLETE BALANCE OF THE FORM.
PART II: OTHER TRANSFER INFORMATION
A. Date of transfer if other than recording date.
B. Type of transfer. Please check appropriate box.
"
Purchase "Foreclosure "Gift " Trade or Exchange"
Merger, Stock or Partnership Acquisition "
Contract of Sale _ Date of Contract "Inheritance _ Date of Contract
" Other: Please explain: " Creation of a lease:
" Assignment of a lease; "Termination of a lease
Date lease began Original term in years (including written options)
Remaining term in years (including written options)
C. Was only a partial interest in the property transferred?
" Yes " No
If yes, indicate the percentage transferred %
Please answer, to the best of your knowledge, all applicable questions,
sign and date. If a question does not apply, indicate with "N/A".
PART 1: PURCHASE PRICE & TERMS OF SALE
(a) CASH DOWN PAYMENT OR Value of Trade or Exchange
(excluding closing cost)
(b) FIRST DEED OF TRUST @ % interest for years.
Pymts./Mo. = $ (Prin. & Int. only)
" FHA" Fixed Rate
"New Loan" Conventional
"Variable Rate
"Assumed Existing Loan Balance
"VA"
All Inclusive D.T. ($ Wrapped)
"Bank or Savings & Loan"
Cal-Vet
"Loan Carried by Seller"
Finance Company Balloon Payment " Yes " No
Due Date Amount $
(c) SECOND DEED OF TRUST @ % interest for years.
Pymts./Mo. = $
(Prin. & Int. only)
"Bank or Savings & Loan
"Fixed Rate
"New Loan
"Loan Carried by Seller
"Variable Rate
"Assumed Existing Loan Balance Balloon Payment " Yes " No
Due Date Amount $
(d) OTHER FINANCING:
Is other financing involved not covered in (b) or (c) above? " Yes " No
Type @ % interest for years.
Pymts./Mo. = $ (Prin. & Int. only)
"Bank or Savings & Loan
"Fixed Rate
"New Loan
"Loan Carried by Seller
"Variable Rate
"Assumed Existing Loan Balance Balloon Payment " Yes " No
Due Date Amount $
(e) IMPROVEMENT BOND
" Yes " No
Outstanding Balance:
Amount $ Amount $ Amount $
Amount $
Amount $
(f) TOTAL PURCHASE PRICE: (or acquisition price, if
traded or exchanged, include real estate commission if
paid.)
Total items A through E
$
(g) PROPERTY
PURCHASED: " Through a broker; "
Direct form seller; " Other
(Explain)
If purchased through a broker, provide broker's name and phone
no.:
Please explain any special terms or financing and many other
information that would
help the Assessor understand the purchase price and terms of sale.
PART 2: PROPERTY INFORMATION
(a) IS PERSONAL PROPERTY INCLUDED IN THE PURCHASE PRICE
(other than a
mobilehome subject
to local property
tax)?
" Yes
" No
If yes, enter the value of the personal property included in the
purchase price $ (Attach itemized list of
personal property)
(b) IS THIS
PROPERTY INTENDED
AS YOUR PRINCIPAL
RESIDENCE? "
Yes "
No
If yes, enter date of occupancy /
/, 19 or intended occupancy /
, 19
Month
Day
Month
Day
(c) TYPE OF PROPERTY TRANSFERRED:
"
Single-Family
residence
"Agricultural
"
Timeshare
"
Multiple-Family
residence
(no. of units: ) "
Coop/
Own-your-own "Mobilehome
"Commercial/Industrial
"Condominium
"Unimproved lot
" Other (Description: )
(d) DOES THE PROPERTY
PRODUCE INCOME? "
Yes " No
(e) IF THE ANSWER TO QUESTION D IS YES, IS THE INCOME FROM:
" Lease/Rent
" Contract
" Mineral rights
" Other - explain
(f) WHAT WAS THE CONDITION OF THE PROPERTY AT THE TIME OF SALE?
" Good " Average
" Fair " Poor
Enter here, or on an attached sheet, any other information that
would assist the Assessor in determining value of the property such
as the physical condition of the property, restrictions, etc.
I certify that the foregoing is true, correct and complete to the
best of my knowledge and belief.
Signed
Date
(New Owner/Corporate
Officer)
Please Print Name of New Owner/Corporate Officer
Phone No. where you are available from 8:00 a.m. - 5:00 p.m. (
)
(Note: The Assessor may contact you for further information)
If a document evidencing a change of ownership is presented to the
recorder for recordation without the concurrent filing of a PRELIMINARY
CHANGE OF OWNERSHIP REPORT, the recorder may charge an additional
recording fee of twenty dollars ($20).
Exhibit D
XXXX OF SALE, ASSIGNMENT OF CONTRACT
RIGHTS AND INTANGIBLE ASSETS
Reference is made to that certain ______________ dated
_______, 1996 (the "Agreement") between 3Com Corporation, a
California Corporation, and Dairy Associates, L.P., a
California limited partnership ("Dairy"), pursuant to which
3Com Corporation named BNP LEASING CORPORATION ("Assignor") as
its designee and Dairy Associates, L. P. conveyed to Assignor
the real property described in Annex A attached hereto (the
"Property).
Assignor hereby sells, transfers and assigns unto [3COM
OR THE APPLICABLE PURCHASER, AS THE CASE MAY BE], a
_____________ ("Assignee"), all of Assignor's right, title
and interest in and to the following property, if any, to the
extent such property is assignable:
(a) any warranties, guaranties, indemnities and claims
Assignor may have under the Agreement or under any document
delivered by Dairy thereunder to the extent related to the
Property;
(b) all licenses, permits or similar consents (excluding
any prepaid utility reservations) from third parties to the
extent related to the Property;
(c) any pending or future award made because of any
condemnation affecting the Property or because of any
conveyance to be made in lieu thereof, and any unpaid award
for damage to the Property and any unpaid proceeds of
insurance or claim or cause of action for damage, loss or
injury to the Property;
(d) any goods, equipment, furnishings, furniture,
chattels and personal property of whatever nature that are
located on or about the Property; and
(e) any general intangibles, permits, licenses,
franchises, certificates, and other rights and privileges
owned by Assignor and used solely in connection with, or
relating solely to, the Property, including any such rights
and privileges conveyed to Assignor pursuant to the Agreement;
but excluding any rights or privileges of Assignor under (i)
the Environmental Indemnity, as defined in that certain
Purchase Agreement between Assignor and 3Com Corporation dated
as of October 4, 1996 (the "Purchase Agreement") (pursuant to
which this document is being delivered), (ii) the Lease, as
defined in the Purchase Agreement, to the extent rights under
the Lease relate to the period ending on the date hereof,
whether such rights are presently known or unknown, including
rights of the Assignor to be indemnified against claims of
third parties as provided in the Lease which may not presently
be known, and including rights to recover any accrued unpaid
rent under the Lease which may be outstanding as of the date
hereof, (iii) agreements between Assignor and Participants, as
defined in the Lease, or any modification or extension
thereof, and (iv) any other instrument being delivered to
Assignor contemporaneously herewith pursuant to the Purchase
Agreement.
Assignor does for itself and its heirs, executors and
administrators, covenant and agree to warrant and defend the
title to the property assigned herein against the just and
lawful claims and demands of any person claiming under or
through Assignor, but not otherwise; excluding, however, any
claim or demand arising by, through or under [3COM].
Assignee hereby assumes and agrees to keep, perform and
fulfill Assignor's obligations, if any, relating to any
permits or contracts, under which Assignor has rights being
assigned herein.
Executed: , _____.
ASSIGNOR:
BNP LEASING CORPORATION
a Delaware corporation
By:
Its:
ASSIGNEE:
[3COM, OR
THE APPLICABLE PURCHASER], a _________
corporation
By:
Its:
Annex A
Legal Description
REAL PROPERTY in the City of Santa Xxxxx, County of Santa
Xxxxx, State of California, described as follows:
Parcel One
Parcel A, as shown on that certain Parcel Map recorded July 7,
1989, Book 602 of Maps, at pages 34 and 35, Records of Santa
Xxxxx County, California.
EXCEPTING THEREFROM that portion described in that certain Lot
Line Adjustment dated August 16, 1991 in Book L826, at page
0826 of Official Records and described as follows:
Beginning at the Southwest corner of said Parcel "A"; thence
on the Westerly and Northerly lines of said Parcel "A" the
following 5 courses:
1. North 00 12' 36" East a distance of 665.00 feet;
2. North 45 12' 36" East a distance of 64.00 feet;
3. North 00 12' 36" East a distance of 82.98 feet to a
point on a non-tangent curve the center of which bears North
29 17' 50" West a distance of 9000.00 feet;
4. Northeasterly a distance of 79.37 feet on the arc of said
curve to the left through a central angle of 00 30' 19"
(chord bears North 60 27' 01" East a distance of 79.37
feet, to a point on said curve;
5. North 66 32' 39" East, departing said curve, a distance
of 75.89 feet;
Thence South 62 07' 20" West a distance of 104.00 feet to a
point of curvature; thence Southwesterly a distance of 9.53
feet on the arc of said 10136.00 foot radius curve to the
right through a central angle of 00 03' 14" (chord bears
South 62 08' 57" West a distance of 9.53 feet) to a point on
said curve; thence South 00 12' 36" West a distance of 809.62
feet to a point on the South line of said parcel "A"; thence
North 89 47' 24" West, on said South line, a distance of
83.50 feet to the point of beginning.
ALSO EXCEPTING THEREFROM that portion of said land as
condemned to the State of California by Order recorded March
10, 1993 in Book M660, page 1700, described as follows:
Being a portion of Parcel A, as shown on that certain Parcel
Map filed for record in Book 602 of Maps at pages 34 and 35
Santa Xxxxx County Records described as follows:
Beginning at the Northeast corner of said Parcel A; thence
from said point of beginning, along the Northerly line of said
Parcel A, S 67 25' 20" W 39.39 feet; thence leaving said
Northerly line S 41 34' 47" E 73.60 feet to a point in the
Easterly line of said Parcel A; thence along said Easterly
line of N 10 04' 48" W 71.28 feet to the point of beginning.
Parcel Two
That portion of Parcel B, as shown on that certain Parcel Map
recorded July 7, 1989, Book 602 of Maps, at pages 34 and 35,
Records of Santa Xxxxx County, California and described in
that certain Lot Line Adjustment dated August 16, 1991 in Book
L826, at page 0826 of Official Records and described as
follows:
Beginning at a point on the most Northerly Southeasterly line
of said Parcel "B" which bears South 66 32' 39" West a
distance of 226.19 feet from the most Easterly corner thereof;
thence South 10 57' 34" East a distance of 218.69 feet;
thence North 89 47' 24" West a distance of 324.26 feet;
thence North 77 17' 24" West a distance of 141.24 feet;
thence North 66 32' 39" East a distance of 458.33 feet to the
point of beginning.
APN: 000-00-000, 16
ARB: 000-00-000, 046.02, 046.02.01
Exhibit E
Acknowledgment of Disclaimer of Representations and
Warranties
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND
WARRANTIES (this "Certificate") is made as of
___________________, ____, by [3COM or the Applicable
Purchaser, as the case may be], a ___________________
("Grantee").
Contemporaneously with the execution of this Certificate,
BNP Leasing Corporation, a Delaware corporation ("BNPLC"), is
executing and delivering to Grantee (1) a Corporation Grant
Deed and (2) a Xxxx of Sale, Assignment of Contract Rights and
Intangible Assets (the foregoing documents and any other
documents to be executed in connection therewith are herein
called the "Conveyancing Documents" and any of the properties,
rights or other matters assigned, transferred or conveyed
pursuant thereto are herein collectively called the "Subject
Property").
Notwithstanding any provision contained in the
Conveyancing Documents to the contrary, Grantee acknowledges
that BNPLC makes no representations or warranties of any
nature or kind, whether statutory, express or implied, with
respect to environmental matters or the physical condition of
the Subject Property, and Grantee, by acceptance of the
Conveyancing Documents, accepts the Subject Property "AS IS,"
"WHERE IS," "WITH ALL FAULTS" and without any such
representation or warranty by Grantor as to environmental
matters, the physical condition of the Subject Property,
compliance with subdivision or platting requirements or
construction of any improvements. Without limiting the
generality of the foregoing, Grantee hereby further
acknowledges and agrees that warranties of merchantability and
fitness for a particular purpose are excluded from the
transaction contemplated by the Conveyancing Documents, as are
any warranties arising from a course of dealing or usage of
trade. Grantee hereby assumes all risk and liability (and
agrees that BNPLC shall not be liable for any special, direct,
indirect, consequential, or other damages resulting or arising
from or relating to the ownership, use, condition, location,
maintenance, repair, or operation of the Subject Property,
except for damages proximately caused by (and attributed by
any applicable principles of comparative fault to) the wilful
misconduct, Active Negligence or gross negligence of BNPLC,
its agents or employees. As used in the preceding sentence,
"Active Negligence" of a party means, and is limited to, the
negligent conduct of activities actually on or about the
Property by that party in a manner that proximately causes
actual bodily injury or property damage to be incurred.
"Active negligence" shall not include (1) any negligent
failure of BNPLC to act when the duty to act would not have
been imposed but for BNPLC's status as owner of the Subject
Property or as a party to the transactions pursuant to which
BNPLC is delivering this instrument (the "Applicable
Transactions"), (2) any negligent failure of any other party
to act when the duty to act would not have been imposed but
for such party's contractual or other relationship to BNPLC or
participation or facilitation in any manner, directly or
indirectly, of the Applicable Transactions, or (3) the
exercise in a lawful manner by BNPLC (or any party lawfully
claiming through or under BNPLC) of any remedy provided in
connection with the Applicable Transactions.
The provisions of this Certificate shall be binding on
Grantee, its successors and assigns and any other party
claiming through Grantee. Grantee hereby acknowledges that
BNPLC is entitled to rely and is relying on this Certificate.
EXECUTED as of ________________, ____.
,
a
By:
Name:
Title:
Exhibit F
Documentary Transfer Tax Request
ACCOUNTABLE FORM #
DATE:
To: Santa Xxxxx County Recorder
Subject: REQUEST THAT DOCUMENTARY TRANSFER TAX
DECLARATION BE MADE IN ACCORDANCE WITH REVENUE CODE
11932.
Re: Instrument Title: Corporation
Grant Deed
Name of Party Conveying Title: BNP Leasing
Corporation
The Documentary Transfer Tax is declared to be in the amount
of $_______________ for the referenced instrument and is:
" Computed on full value of property conveyed.
" Computed on full value less
liens/encumbrances remaining thereon at time of sale.
This separate declaration is made in accordance with
_________________________________. It is requested that the
amount paid be indicated on the face of the document after the
permanent copy has been made.
Sincerely,
Individual (or
his agent) who made, signed or issued
instrument
PART I
RECORDING REFERENCE DATA:
Serial # Date Recorded
SEPARATE PAPER AFFIXED TO INSTRUMENT:
"Tax paid" indicated on the face of instrument and the
separate request (DRA 3-A) was affixed for Recorder by:
Date
Documentary Transfer Tax Collector
Witnessed by: Date
Mail Clerk
(Note: Prepare photo for Recorder file.)
PART II ACCOUNTABLE FORM #
REFERENCE DATA: Title:
Serial: Date:
INSTRUCTIONS:
1. This slip must accompany document.
2. Mail Clerk hand carry document to Tax Collector
to indicate the amount of tax paid.
Exhibit G
SECRETARY'S CERTIFICATE
The undersigned, Secretary of BNP
Leasing Corporation, a Delaware corporation (the
"Corporation"), hereby certifies as follows:
1. That he is the duly, elected, qualified and acting
Secretary [or Assistant Secretary] of the Corporation and has
custody of the corporate records, minutes and corporate seal.
2. That the following named persons have been properly
designated, elected and assigned to the office in the
Corporation as indicated below; that such persons hold such
office at this time and that the specimen signature appearing
beside the name of such officer is his or her true and correct
signature.
[The following blanks must be completed with the names and
signatures of the officers who will be signing the deed and
other Required Documents on behalf of the Corporation.]
Name Title Signature
3. That the resolutions attached hereto and made a part
hereof were duly adopted by the Board of Directors of the
Corporation in accordance with the Corporation's Articles of
Incorporation and Bylaws. Such resolutions have not been
amended, modified or rescinded and remain in full force and
effect.
IN WITNESS WHEREOF, I have hereunto signed my name and
affixed the seal of the Corporation on this , day of
, .
[signature]
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement
(herein called the "Purchase Agreement") dated as of
October 4, 1996, by and between BNP Leasing Corporation (the
"Corporation") and [3COM OR THE APPLICABLE PURCHASER AS THE
CASE MAY BE] ("Purchaser"), the Corporation agreed to sell and
Purchaser agreed to purchase or cause the Applicable Purchaser
(as defined in the Purchase Agreement) to purchase the
Corporation's interest in the property (the "Property")
located in Santa Clara, California more particularly described
therein.
NOW THEREFORE, BE IT RESOLVED, that the Board of
Directors of the Corporation, in its best business judgment,
deems it in the best interest of the Corporation and its
shareholders that the Corporation convey the Property to
Purchaser or the Applicable Purchaser pursuant to and in
accordance with the terms of the Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the
Corporation, and each of them, are hereby authorized and
directed in the name and on behalf of the Corporation to cause
the Corporation to fulfill its obligations under the Purchase
Agreement.
RESOLVED FURTHER, that the proper officers of the
Corporation, and each of them, are hereby authorized and
directed to take or cause to be taken any and all actions and
to prepare or cause to be prepared and to execute and deliver
any and all deeds and other documents, instruments and
agreements that shall be necessary, advisable or appropriate,
in such officer's sole and absolute discretion, to carry out
the intent and to accomplish the purposes of the foregoing
resolutions.
Exhibit H
BNP LEASING CORPORATION
000 X. XXXXXXX
XXXXX 0000
XXXXXX, XXXXX 00000
,
[Title Insurance Company]
_________________
_________________
_________________
Re: Recording of Grant Deed to [3COM or the Applicable
Purchaser] ("Purchaser")
Ladies and Gentlemen:
BNP Leasing Corporation has executed and delivered to
Purchaser a Grant Deed in the form attached to this letter.
You are hereby authorized and directed to record the Grant
Deed at the request of Purchaser.
Sincerely,
Exhibit I
FIRPTA STATEMENT
Section 1445 of the Internal Revenue Code of 1986, as
amended, provides that a transferee of a U.S. real property
interest must withhold tax if the transferor is a foreign
person. Sections 18805, 18815 and 26131 of the California
Revenue and Taxation Code, as amended, provide that a
transferee of a California real property interest must
withhold income tax if the transferor is a nonresident seller.
To inform [3COM or the Applicable Purchaser] (the
"Transferee") that withholding of tax is not required upon the
disposition of a California real property interest by
transferor, BNP Leasing Corporation (the "Seller"), the
undersigned hereby certifies the following on behalf of the
Seller:
1. The Seller is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms
are defined in the Internal Revenue Code and Income Tax
Regulations);
2. The United States employer identification number for
the Seller is _____________________;
3.The office address of the Seller is ______________
__________________________________________.
[Note: BNPLC MUST INCLUDE EITHER ONE, BUT ONLY ONE, OF THE
FOLLOWING REPRESENTATIONS IN THE FIRPTA STATEMENT, BUT IF THE
ONE INCLUDED STATES THAT BNPLC IS DEEMED EXEMPT FROM
CALIFORNIA INCOME AND FRANCHISE TAX, THEN BNPLC MUST ALSO
ATTACH A WITHHOLDING CERTIFICATE FROM THE CALIFORNIA FRANCHISE
TAX BOARD EVIDENCING THE SAME:
4. The Seller is qualified to do business in California.
OR
4. The Seller is deemed to be exempt from the withholding
requirement of California Revenue and Taxation Code Section
26131(e), as evidenced by the withholding certificate from the
California Franchise Tax Board which is attached.]
The Seller understands that this certification may be
disclosed to the Internal Revenue Service and/or to the
California Franchise Tax Board by the Transferee and that any
false statement contained herein could be punished by fine,
imprisonment, or both.
The Seller understands that the Transferee is relying on
this affidavit in determining whether withholding is required
upon said transfer. The Seller hereby agrees to indemnify and
hold the Transferee harmless from and against any and all
obligations, liabilities, claims, losses, actions, causes of
action, demands, rights, damages, costs, and expenses
(including but not limited to court costs and attorneys' fees)
incurred by the Transferee as a result of any false misleading
statement contained herein.
Under penalties of perjury I declare that I have examined
this certification and to the best of my knowledge and belief
it is true, correct and complete, and I further declare that I
have authority to sign this document on behalf of the Seller.
Dated: ___________, ____.
By:
Name:
Title:
Exhibit C - Page 6
